Jean-Bernard Auby – Comparative public law and Europe : Some thoughts

The following comments reflect my own experience ; not everyone would necessarily agree. They revolve around the practical importance of comparative public law and the degree in which legal actors concretely take it into account.

Practical importance of comparative public law in the European legal melting pot

I believe that the following remarks can be said at the very least.

Comparative law is usually a rather academic matter, the opportunity to reflect on different models and on the law in general. It deals with concrete issues only at very specific moments, when a legal system seeks to modify deeply some of its institutions and has no other solution than looking abroad : for instance, Japan at the Meiji time (from 1867 onwards) transformed its legal system in depth thanks to inspiration drawn from Western systems.

With legal globalisation, and especially the European legal melting pot which is a rather well developed avatar of globalisation, comparative law develops very practical aspects, especially when it comes to comparative public law.

In the European sphere, legal systems, public as well as private, are more than ever optional. Actors such as enterprises and NGOs, whose activity moves easily, can choose to be regulated by one or the other legal system – depending on what they know, and what their advisors tell them, about the respective advantages and disadvantages of different legal systems : in terms of taxation, state support to economic actors, more or less openess to public private partnerships, in terms of control over foreign investments, etc.

Public – and here again private – laws also compete to influence European law, which is often built on the highest common denominators across national law. Their efforts are not always paid back : French administrative law did not succeed in convincing European law to import its theory of public service – except at the very margin.

European states’ public laws sometimes influence each other, in a process of circulation of models. The British Private Finance Initiative has strongly shaped the development of public-private partnerships on the European continent for instance.

Furthermore, the implementation of European law, a task which is mainly borne by national administrative systems, relies heavily on public law. In case of major European reforms (eg immigration, public procurement…), States are naturally inclined to keep an eye on how these reforms are implemented elsewhere. They want to ensure that their peers do not avoid constraints flowing from European law in choosing a minimal implementation of it.

These arguments could surely be supplemented by other ones.

The question is then to know how legal actors are concretely taking comparative public law into account.

Judges and courts have equipped themselves to some extent in order to get familiar with comparative public law and to use it. In France, the most noteworthy evolution is the one that has emerged in the Conseil d’Etat (French administrative highest court). The Conseil d’Etat was not an early starter in getting more open to other legal systems, but it caught up very well with its delay recently. In 2008, a unit of comparative law – staffed by lawyers with various national backgrounds – has been set up and is now widely relied upon.

In all important cases, the Conseil d’Etat asks for a benchmarking of solutions in comparative law to be undertaken. The public reporters (« rapporteurs publics »: these judges, once known as « commissaires du gouvernement » are in charge of putting forward an objective analysis of the case and a solution), use increasingly foreign solutions analysed by the unit of comparative law in their « conclusions » (the traditional name for their contribution to the administrative process).

Legislative and governmental authorities are equipped in a very fluctuating way when it comes to comparative public law. Despite several attempts, France never succeeded in setting up a big « Institute of Comparative law » (on the Swiss model for instance) which could be used by all its public bodies to carry out comparative studies on topical issues.

I think that the Parliament is the most systematically eager to know the solutions available in other legal systems : its committees, supported by high quality staff, ask very often for research to be undertaken in that direction. Parliamentary papers bear witness of this : references to other legal systems are often made in reports issued by the National Assembly and the Senate.

Among the French public law academics, comparative law experiences a relative slow down after a period of high interest in the first half of the 20th century. Some internationally renowned authors, such as Jean Rivero or Michel Fromont have kept the light ablaze however. Nowadays, the interest for comparative law has been rekindled, even though a poor ability in foreign languages often impedes a wider interest to take up.

Lawyers practicing in the field of public law exhibit a variable interest for comparative law. Those who have only a few cases with transnational dimensions have not many incentives to invest in that direction. Major law firms are more often inclined to develop a comparative expertise as they deal with cases bridging different legal systems and as they sometimes seek to develop a top level expertise on specific legal issues. These law firms, often international, find in general within their own structure the information and resources they need. The comparative research that they do help them from time to time to convince judges that their legal positions are well founded.